HONG KONG SAR, CHINA Law and Practice Contributed by: Frederick Hui, Terence Luk, Serene Lam and Kenneth Yau, Zhong Lun Law Firm
3.2 Steps Taken to Return Abducted Children If a child has been wrongfully removed from Hong Kong, the available legal recourse and the specific procedures to secure their return are fundamentally determined by whether the destination country is a contracting party to the Hague Convention. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), which aims at protecting children from the harmful effects of international abduction by a par - ent by encouraging the prompt return to the places of their habitual residence, and to secure the effec - tive rights of access to a child, applies in Hong Kong and has force of law through the Child Abduction and Custody Ordinance (Cap. 512) (CACO). The Child Abduction and Custody Ordinance was enacted to implement the Convention in Hong Kong in 1997. The Central Authority handling claims of international child abduction in Hong Kong is the Department of Justice, on behalf of the Secretary for Justice. Convention Countries If the child has been taken to a Hague Convention signatory country, the left-behind parent can initiate formal return proceedings. The Department of Justice provides that the wronged parents have the following resorts: • to send an application for assistance to the Central Authority of Hong Kong, which is the Department of Justice; • to send an application for assistance directly to the Central Authority of the Contracting State or terri - tory where the child is; or • to directly commence foreign judicial or administra - tive proceedings (it is advisable to instruct lawyers for legal representation). To support this foreign application, the parent can apply to the Hong Kong Court of First Instance for a formal declaration to be provided to the receiving country under Section 10 of the CACO, confirming that the removal was indeed wrongful under Article 3 of the Convention. Furthermore, the left-behind par - ent can contact the Department of Justice, which will actively co-operate and liaise with the Central Author - ity of the receiving country to locate the child, protect
caregiver serves as a key factor supporting relocation application. While established authorities demonstrate that primary caregivers are often well-positioned to succeed, SMM v TWM has made clear that there is no legal presumption in favour of the applicant. Rather, the Payne framework provides structured guidance to evaluate whether the application is both genuine and realistic. The application would still fail if the relocation proposal is likely to impact detrimentally on the welfare of the children, even if proposed by the primary carer. Ultimately, the status as the primary caregiver alone is not determinative; it must be supported by other factors and the outcome remains strictly dependent on the best interest of the child. 2.4 Relocation Within a Jurisdiction Due to Hong Kong’s compact size, concepts of relo - cating across states or distant regions do not apply. A primary caregiver does not need court permission or leave to relocate with a child to another district within the territory. However, it is standard practice to inform the other parent in advance, as maintaining access to both parents remains in the child’s best interests. If an internal move significantly disrupts existing visitation or schooling, the non-custodial parent may apply to the court to adjust custody or access arrangements accordingly. As noted in 2.1 Whose Consent Is Required for Relocation? , custody orders sometimes contain pro - visions prohibiting a parent from removing a child from the jurisdiction. Where such an order is in place, the relocating parent must obtain the other parent’s prior consent. Similarly, where legal proceedings are ongoing, the parent seeking to remove the child must obtain leave from the court. Conversely, in the absence of an express court prohi - bition or pending legal proceedings, for example in the exceptional situation where sole custody is granted to the custodial parent and no rights of access are granted to the non-custodial parent, the custodial par - ent may freely remove the child from the jurisdiction without the other parent’s consent. 3. Child Abduction 3.1 Legality
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